STATE OF NEW JERSEY v. WILSON MORALES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1270-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILSON MORALES,

Defendant-Appellant.

_____________________________________________

February 20, 2013

Argued October 3, 2012 - Decided

Before Judges Ashrafi and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-04-1576.

Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah Terry, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Wilson Morales, appeals from the May 10, 2010 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

The record reveals that a grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); felony murder, N.J.S.A. 2C:11-3a(3); armed robbery, N.J.S.A. 2C:15-1; conspiracy to commit armed robbery and murder, N.J.S.A. 2C:5-2, 11-3 and 15-1; aggravated assault, N.J.S.A. 2C:12-1b(4); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; endangering an injured victim, N.J.S.A. 2C:12-1.2; and certain persons not to have weapons, N.J.S.A. 2C:39-7a. Subsequently, pursuant to a plea agreement, defendant pled guilty to first-degree aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a(1). The charges stemmed from defendant's involvement in a robbery of a grocery store, during which the store owner was killed.

The record reveals that on November 18, 2003, defendant, while detained at a correctional facility on unrelated warrants, told an officer that he had information about a murder at a grocery store in Camden. He then told an investigator from the County Prosecutor's Office that he knew who had committed the crime.

That same day, the investigator contacted defendant's girlfriend who reported that she overheard defendant and another person plan to rob a store. She also reported that, shortly thereafter, defendant came home one night in tears and threw money and a gun onto the bed. According to the girlfriend, defendant told her that he had robbed and shot someone in the store and was not sure if the man was dead. In giving her statement, she explained that she was angry at defendant because she had recently discovered that he had been unfaithful to her.

On November 20, 2003, the store owner's wife identified defendant from a photo array as the perpetrator with the gun. That same day, when the police interviewed defendant again, he admitted that he and another individual planned the grocery store robbery. He reported that on the day of the crime he got nervous and waited outside while his accomplice entered the store. He further stated that, when he heard gunshots from inside, he entered the store briefly to pull out his associate. After giving his statement, defendant was charged with the store owner's murder.

On September 29, 2006, as part of a plea agreement, defendant pled guilty to one count of aggravated manslaughter, N.J.S.A. 2C:11-4a(1). At the time, two defense motions were pending to suppress defendant's confession and the victim's wife's identification of defendant. During his plea hearing, defendant told the judge that he entered into the plea voluntarily, that he understood that he was waiving his rights and that he was guilty. Defendant admitted that he and another person had driven to the grocery store intending to rob it and he knew the other person had a gun. He acknowledged that his reckless actions had caused the death of the victim and that he was an accomplice to the robbery.

On December 1, 2006, the trial judge sentenced defendant to eighteen years imprisonment with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant's appeal was heard by the excessive sentence panel, R. 2:9-11, which affirmed the sentence. State v. Morales, No. A-6700-06 (App. Div. Nov. 14, 2008). The Supreme Court denied defendant's petition for certification. State v. Morales, 198 N.J. 314 (2009).

Defendant filed a pro se petition for PCR on March 16, 2009 raising the following arguments:

POINT I: DEFENDANT'S CONVICTION AND GUILTY PLEA MUST BE REVERSED BECAUSE DEFENDANT'S PLEA WAS A PRODUCT OF COMPULSION INDUCED BY COERCION AND INTIMIDATION.

A: DEFENDANT'S CONVICTION AND PLEA MUST BE REVERSED BECAUSE THE STATE HELD D.N.A. EVIDENCE WHICH DEPRIVED THE DEFENDANT OF DUE PROCESS.

B: DEFENDANT'S CONVICTION AND PLEA MUST BE REVERSED BECAUSE THE PLEA BARGAIN DID NOT OBVIATE THE NEED TO ESTABLISH A SUFFICIENT FACTUAL BASIS FOR DEFENDANT'S GUILTY PLEA AND DEFENDANT ASSERTED HIS INNOCENCE PRIOR TO SENTENCING.

POINT II: DEFENDANT'S CONVICTION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE BARGAINING STAGE.

A: TRIAL COUNSEL FAILED TO PROPERLY CHALLENGE THE ADMISSIBILITY OF DEFENDANT'S STATEMENT VIOLATING HIS RIGHT AGAINST SELF-INCRIMINATION GUARANTEED BY THE FIFTH AMENDMENT.
 

B: TRIAL COUNSEL FAILED TO PROPERLY CHALLENGE THE ADMISSIBILITY OF THE OUT-OF-COURT PHOTO IDENTIFICATION.

POINT III: DEFENDANT'S CONVICTION AND PLEA MUST BE REVERSED BECAUSE DEFENDANT'S STATEMENT WAS OBTAINED IN VIOLATION OF DEFENDANT'S RIGHT TO REMAIN SILENT.

A: DEFENDANT'S PLEA AND CONVICTION SHOULD BE REVERSED BECAUSE A WAIVER OF THE RIGHT TO APPEAL SHOULD NOT BE PART OF A PLEA BARGAIN.

POINT IV: PROSECUTORIAL MISCONDUCT AND MALICIOUS PROSECUTION BEFORE THE GRAND JURY.

POINT V: DEFENDANT'S PLEA AND CONVICTION SHOULD NOT STAND DUE TO PROSECUTORIAL MISCONDUCT BY THE STATE'S PROSECUTOR BY PRESENTING FALSE TESTIMONY DURING THE TRIAL MOTION TO DISMISS THE INDICTMENT.

A: DEFENDANT'S INDICTMENT MUST BE DISMISSED BECAUSE OF PROSECUTORIAL MISCONDUCT BY THE STATE PROSECUTOR BY THE SUPPRESSION OF A SWORN STATEMENT OF [DEFENDANT'S GIRLFRIEND] WHICH WAS VITAL AND MATERIAL EVIDENCE FAVORABLE TO THE DEFENDANT'S GUILT OR INNOCENCE RESULTING IN A VIOLATION OF THE DEFENDANT'S DUE PROCESS.

On August 26, 2009, after defendant obtained counsel, his attorney filed a supplemental brief which raised the following contentions:

A: THE FAILURE OF THE PROSECUTION TO DISCLOSE THE RETRACTION OF [DEFENDANT'S GIRLFRIEND] CONSTITUTES A PRIMA FACIE CLAIM UNDER BRADY V. MARYLAND.

B: MR. MORALES RECEIVED AN ILLEGAL SENTENCE BECAUSE THE FACTUAL BASIS OF HIS PLEA WAS INSUFFICIENT FOR A CONVICTION OF AGGRAVATED MANSLAUGHTER AND HIS SENTENCE FOR SUCH WAS BASED ON THIS CONVICTION.

On February 26, 2010, Judge Richard F. Wells heard oral argument on the PCR petition. He rendered a comprehensive thirteen-page written opinion on May 10, 2010, denying defendant's PCR petition without an evidentiary hearing. Judge Wells found that several claims in the petition were barred under Rule 3:22-4 because defendant failed to raise them on direct appeal and did not show that a denial of relief would result in fundamental injustice.

Despite finding that some claims were procedurally barred, Judge Wells addressed the merits of all of defendant's contentions. First, the judge found that defendant failed to establish that the factual basis of his plea was insufficient. The judge noted that, during the plea colloquy, defendant provided an adequate factual basis for aggravated manslaughter in his detailed account of the events at the store. The judge found unavailing the argument that defendant did not know that his accomplice would shoot or kill the victim. The judge, citing State v. Bridges, 133 N.J. 447, 468 (1993), reasoned that a co-conspirator can be liable for the acts of others if the risks were reasonably foreseeable, and found that the store owner's death was a foreseeable result of the armed robbery.

Judge Wells also rejected defendant's Brady1 claim that the State had withheld exculpatory evidence and that, but for the failure to disclose the evidence, defendant would not have pled guilty. In 2007, defendant's girlfriend submitted a written statement to the County Prosecutor saying that in 2006 she had lied about defendant's involvement in the robbery because she was angry due to his infidelity. She also stated that she had gone to the county administration building a few days after giving the statement and informed a Detective Morales that she was retracting her statement. In 2008, the girlfriend wrote another statement, reiterating that her initial 2006 statement was false and adding for the first time that the investigators coerced her to give a statement. In 2009, she gave a statement to a defense investigator in which she stated that she had gone to the Camden Police Department to retract her 2006 statement. The prosecution, which denied any knowledge of these statements prior to the plea, did not provide defendant any evidence about this retraction in discovery.

The judge emphasized that to support a Brady claim a defendant must show that the prosecutor did not disclose evidence, the evidence was favorable to the defendant, and the evidence was material. State v. Parsons, 341 N.J. Super. 448, 454 (App. Div. 2001). In regard to the first element, the judge observed that defendant did not show that his girlfriend's recantation was made available to the State. In regard to the third element, the judge found that the alleged recantation could undermine the girlfriend's credibility if she testified at trial and, thus, could be used for impeachment. However, Judge Wells noted that, unless it contains evidence of actual innocence, Brady does not require the disclosure of impeachment evidence prior to a defendant entering into a guilty plea. United States v. Ruiz, 536 U.S. 622, 633, 122 S. Ct. 2450, 2457, 153 L. Ed. 2d 586, 597 (2002). As the alleged recantation was not affirmative evidence of defendant's innocence, the judge found that defendant did not make a prima facie showing of a Brady violation.

In denying defendant's ineffective assistance of counsel claim, Judge Wells observed that defendant must show that his counsel rendered a deficient performance, which deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The judge determined that defendant did not show that counsel's actions were deficient. He noted that defense counsel moved to suppress evidence of his confession and of his identification from a photo array prior to defendant's guilty plea and that defendant knew those motions were pending prior to agreeing to plead guilty. The judge observed that counsel was able to negotiate a favorable plea agreement and that waiving the right to complete the pre-trial motions was a usual component of such negotiations. Consequently, Judge Wells determined that defendant did not make a prima facie showing of ineffective assistance of counsel. Finally, the judge considered and rejected defendant's other pro se claims. As a result, Judge Wells denied defendant's PCR petition. This appeal followed.

On appeal, defendant raises the following arguments for our consideration:

POINT I: THE STATE VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS AS RECOGNIZED IN BRADY V. MARYLAND, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), WHEN IT WITHHELD MATERIAL AND FAVORABLE EVIDENCE FROM THE DEFENSE.

A: The State Failed To Advise The Defense That [defendant's girlfriend] Recanted Her November 18, 2003 Statement.

B: The State Withheld DNA Evidence.

POINT II: THE PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

A: Trial Counsel's Failure To Investigate And Discover [defendant's girlfriend] Recanted Statement Amounted To Ineffective Assistance Of Counsel.

B: Trial Counsel's Failure To Litigate Meritorious Pre-Trial Motions Amounted To Ineffective Assistance of Counsel.

1. Trial counsel provided ineffective assistance when he failed to proceed with the Wade hearing.

2. Trial counsel failed to litigate a suppression motion to challenge the admissibility of Mr. Morales' incriminating statements.

POINT III: THE PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

We begin with a review of the relevant well-settled principles governing PCR. Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person making a prima facie showing of entitlement to such relief by demonstrating a reasonable likelihood that his or her claim will ultimately succeed on the merits is generally entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 462. Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). In deciding if defendant has established a prima facie claim, we must "view the facts in the light most favorable to a defendant." Ibid.

We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). As Judge Wells noted, in order to prevail on such a claim, a defendant must show both that his attorney's performance was deficient and that this deficient performance prejudiced his defense. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

In order to demonstrate a prima facie case of ineffective assistance of counsel when defendant pled guilty, defendant must satisfy a modified Strickland standard:

When a guilty plea is part of the equation . . . "a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial."

[State v. Nunez-Valdez, 200 N.J. 129, 139

(2009) (quoting State v. DiFrisco, 157 N.J.

434, 457 (1994)).]

Moreover, to obtain relief under the second prong "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. __, __, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).

Based upon our review of the record and the applicable law, we conclude defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially based upon Judge Wells' well-reasoned and thorough opinion of May 10, 2010. We add only the following brief discussion.

Evidence is exculpatory within the meaning of Brady where it is "favorable to the defendant." State v. Reddish, 181 N.J. 553, 639-40 (2004). "The measure of materiality is the likely impact of the evidence withheld, i.e., whether there is 'a reasonable probability' that if the evidence had been disclosed 'the result of the proceeding would have been different.'" State v. Mustaro, 411 N.J. Super. 91, 101 (App. Div. 2009) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)). "And, a 'reasonable probability' is one 'sufficient to undermine confidence in the outcome.'" Ibid. However, relief based on the State's failure to provide exculpatory material evidence is not available unless the defendant establishes that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Parsons, supra, 341 N.J. Super. at 455 (quoting Bagley, supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494).

Here defendant contends that the retraction evidence was material as he would not have pled guilty if he had known that his girlfriend had renounced her statement. We are not persuaded. In Parsons, we identified five factors bearing on the probability that defendant would not have pled guilty but for a Brady discovery violation: "(1) the relative strength and weakness of the State's and the defendant's case, (2) the persuasiveness of the withheld evidence, (3) the reasons, if any, expressed by the defendant for choosing to plead guilty, (4) the benefits obtained [through] the plea, and (5) the thoroughness of the plea colloquy." Parsons, supra, 341 N.J. Super. at 456.

Applying the foregoing standards, we are convinced the evidence was not material as there was no reasonable probability that defendant would have declined the favorable plea agreement if the State had disclosed, or defense counsel had learned through investigation, his girlfriend's alleged recantation. The State's evidence was overwhelming, including the eyewitness identification and defendant's confession. The allegedly withheld evidence was not directly exculpatory but went toward impeaching the girlfriend, if she testified. Evidence of her retraction would open the door to exploring why she recanted and allegations of defendant's and his family's involvement in causing her to recant. Consequently, the retraction evidence could potentially harm defendant.

Moreover, at the very thorough plea colloquy, defendant stated that he wanted to plead guilty because he was, in fact, guilty. The plea was very beneficial since defendant faced a maximum sentence of 126.5 years with a minimum sentence of thirty years on the first count alone. Instead, he received a considerably lower sentence of eighteen years on the first amended count, the other counts were dismissed, and the sentence was to be served concurrently with another sentence he was serving at the time of the plea.

Affirmed.

1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).